Global Freedom of Expression

O’Connor v. Nova Scotia

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Documents
  • Date of Decision
    October 2, 2001
  • Outcome
    Affirmed Lower Court, Access to Information Granted
  • Case Number
    2001 NSCA132
  • Region & Country
    Canada, North America
  • Judicial Body
    Appellate Court
  • Type of Law
    Administrative Law, Civil Law
  • Themes
    Access to Public Information, Political Expression
  • Tags
    Confidentiality, Deliberations, Sub-national Governmental Bodies

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Case Analysis

Case Summary and Outcome

The Nova Scotia Court of Appeal held that government records sought by the Respondent were subject to the confidentiality exception to the public’s right to access all government information because they revealed the substance of Nova Scotia Provincial Cabinet deliberations relating to ongoing programs. However, the Respondent was entitled to government records pertaining to closed or completed programs. In reaching its decision, the Court stated that the case was about striking a balance between a citizen’s right to know what government is doing and the government’s right to deliberate behind closed doors.

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The appellant Dan O’Connor sought detailed information from the Provincial Government of Nova Scotia related to a revision of certain government programs, including 86 government programs that had been discontinued. The government released certain information but withheld a portion, maintaining it was protected by Cabinet confidentiality.

Decision Overview

The Court held that the Nova Scotia Freedom of Information and Protection of Privacy Act (FOIPOP) in Section 5 establishes the right to access any record in the custody or under the control of a public body. FOIPOP Section 13(1), in turn, provides a Cabinet confidentiality exception, whereby “The head of a public body may refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees […]”. However, Section 13(2) lists a number of cases where the government cannot refuse to disclose on 13(1) grounds, which include those cases where a decision has been implemented or made public.

The Court determined that the issue was whether the information would reveal the “substance of [cabinet] deliberations…” The key word is “substance,” which the Court interpreted to mean the Cabinet’s actual deliberation process, but also information that would infer the substance of cabinet deliberations (in a tangential sense) such as “…advice [or] recommendations…prepared for submission to Cabinet or any of its committees…”.

In rendering its decision, the Court distinguished between the ongoing programs and those that had been closed. The 86 programs that had been closed fell within Section 13(2) and therefore the information had to be released with respect to them. As for the programs that were still in progress, the Court took the view that “it is not something upon which a final decision has been “implemented or made public”, and therefore these were not subject to disclosure. Finally, the Court noted that the government had not waived its Cabinet privilege with respect to these programs.

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The Court emphasized that the Freedom of Information and Protection of Privacy Act (‘FOIPOP’) ought to be interpreted liberally because it made public bodies ‘fully’ accountable to the public subject only to ‘necessary limited and specific exemptions’.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Can., Nova Scotia Freedom of Information and Protection of Privacy Act, sec. 5
  • Can., Nova Scotia Freedom of Information and Protection of Privacy Act, sec. 13
  • Can., Davis v. Bathtub King, 1991 CanLII 2589 (NS CA)
  • Can., MacPhail v. Desrosiers, 1998 CanLII 3339 (NS CA)
  • Can., Carey v. Ontario, 1986 CanLII 7 (SCC)
  • Can., Conway v. Rimmer, [1968] A.C. 910
  • Can., Aquasource Ltd. v. British Columbia (Information & Privacy Commissioner), 1998 CanLII 6444 (BC CA)
  • Can., Pushpanathan v. Canada (Minister of Employment and Immigration), 1998 CanLII 778 (SCC)
  • Can., National Bank of Greece (Canada) v. Katsikonouris, 1990 CanLII 92 (SCC)
  • Can., Order 118, Institution: Ministry of Transportation, [1989] O.I.P.C. No. 81 (Appeal 890172)
  • Can., McLaughlin v. Halifax-Dartmouth Bridge Commission, 1993 CanLII 3116 (NS CA)

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The Nova Scotia Court of Appeal is the highest court in the province with persuasive but not binding authority on courts in other provinces.

In reaching its decision the Court compared its freedom of information and privacy legislation with similar acts in other provinces concluding that the Nova Scotia legislation is deliberately more generous to its citizens. It said that it is the only statute in Canada that declares as its purpose an obligation both to ensure that public bodies are ‘fully’ accountable and to provide for the disclosure of ‘all government information’ subject only to ‘necessary exemptions that are specific and limited’.

Official Case Documents

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